In a May decision from the US District Court for the Southern District of New York, Upsolve, Inc. et al v. James, Upsolve, a nonprofit that helps individuals file for bankruptcy for free, challenged the state’s application of the unauthorized practice of law to other trained professionals. To help low-income individuals facing debt collection navigate and respond to their suits more readily, Upsolve launched the American Justice Movement program in January, which trains professionals to offer complimentary legal advice about whether and how to respond to debt collection lawsuits. Specifically, the volunteers sought to help New Yorkers fill out checkboxes on a one-page answer form provided by the State of New York to avoid automatic default.

In the Upsolve case, the New York Attorney General argued that such guidance was the unauthorized practice of law, but ultimately, the judge ruled that those rules did not apply to the program because the legal advice was protected as speech under the First Amendment. The court also stated that the advice mitigated the risk of harm to the consumer while addressing a significant legal problem area, further in favor of the decision.

In our new column, NextGen Justice Tech, by Kristen Sonday, we will take a look at the people, trends, and technology shaping the future of access to justice.

The ruling is monumental because it allows legal professionals to provide guidance on completing legal forms that might be applied to other areas of law, including through online tools that can reach exponentially more individuals.

“By ruling in favor of Upsolve, the Southern District of New York… established a new First Amendment right in America: the right for low-income families to receive free, vetted, and accountable legal advice from professionals who aren’t lawyers,” said Rohan Pavuluri, Upsolve’s Co-Founder and CEO.

If further applied to online forms and filing apps, then tech companies, court employees, and other volunteers would be able to assist people with basic questions about whether and how to respond to government requests, vastly expanding the number of people who can help. For individuals who are too afraid or uncertain of navigating such services on their own, this support would provide peace of mind and tangible next steps to assist significantly more low-income folks in managing the legal process.

The “sandbox” model

The implementation of state-run legal tech sandboxes is another opportunity to spur justice-related innovation. Utah was the first state to launch such a sandbox in August 2020, in which lawyers and legal professionals can develop and promote new legal solutions under the supervision of the state’s Supreme Court. One year in, the Utah Supreme Court had approved 30 companies, including those that created initiatives to provide individuals help completing court forms and receiving legal advice via chatbot.

The sandbox concept helps mitigate risk for justice tech founders since they’re building and testing ideas alongside a legal authority. In addition, through this model, “justice technology companies can partner with authorized legal services providers to offer consumers actual legal advice. Attorneys are the most obvious partners, but authorized document preparers, among others, are an often-overlooked partner,” says Natalie Knowlton, Founder of Access to Justice Ventures.

Finally, the Association of Professional Responsibility Lawyers (APRL) has made a powerful recommendation to update the American Bar Association’s (ABA’s) Ethics Rule 5.5 and permit lawyers who are admitted in any jurisdiction to be able to practice across others. “Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time,” the APRL wrote in its letter to the ABA president.

This change would be significant for justice technology companies and non-profits in that their lawyers would be able to serve individuals across jurisdictions, regardless of lawyer or client location. Justice tech companies would save time and money by being able to serve more individuals virtually, and with a leaner staff, could free up capital for other initiatives. For tech companies that currently have to hire staff who are licensed in each state in which they want to provide lower cost legal services, this reform would be game-changing.

“As a startup, an update to Rule 5.5 would allow us to move much faster in expanding our services to those in need,” says Erin Levine, the Founder and CEO of HelloDivorce. “We would be able to hire and train fewer, high-quality lawyers that provide consistency in our services across jurisdictions, as well as quickly build out subject matter expertise that can increase the number of clients served.”

Further, under this scenario, legal services organizations would be able to refer pro bono clients to attorneys across the country, making those referrals more efficient and potentially better aligned. The rule also would greatly enhance access for folks in rural areas, as they often are limited to those lawyers in nearby metro areas who might work on their matters.

By being able to access legal assistance from anywhere in the United States — via in person or online, through lawyers or other approved professionals — the magnitude by which the legal profession could greatly help those in need through better legal reforms is significant for the justice tech community and underserved citizens across the country.

This has allowed courts, litigants, and others to recreate the environment of a face-to-face court proceeding, with the added benefit of efficiency for all and improved access to justice for citizens.

Key considerations for courts

Of course, there are several key considerations that courts need to address as they continue to pivot towards conducting proceedings remotely.

What does a fully remote or hybrid proceeding entail?

In a remote proceeding, the judge, attorneys, clients, witnesses, and other participants can appear from multiple locations. By contrast, a hybrid proceeding involves some participants — often a witness — appearing remotely, while others are present in the courtroom with the judge. In either of these proceeding types, participants must have access to the specific remote technology used by the court, which frequently involves Zoom videoconferencing. While videoconferencing typically serves as a primary method for conducting a remote proceeding, a telephone backup ensures that the proceeding can continue to take place even if technical difficulties arise.

Courts may utilize different features for the videoconferencing platform as well. For example, one of Zoom’s standard features involves a private breakout room, which allows attorneys and their clients to privately communicate with each other through the Zoom platform. However, Idaho state courts disabled Zoom’s private chat feature for participants and instead require them to communicate outside of Zoom, such as by telephone.

The judge and court staff remain in control over a remote proceeding and, for example, can employ the mute feature to silence any disruptive participants.

How do the courts determine which proceedings will occur remotely?

Concurrent with rolling back orders and directives governing the pandemic, several courts have established procedures, orders, and rules addressing the specific circumstances for remote and hybrid proceedings. These proceedings vary among state and federal courts and the type of court proceeding.

What are advantages to remote proceedings?

Remote proceedings help limit litigation costs, by eliminating attorneys’ travel time and any waiting time at the courthouse. Remote proceedings also allow a party to present testimony from witnesses who may not be able to attend in person. For example, a key witness may be unable to attend in person because of their location, financial condition, or health, yet the witness may be able to participate remotely.

Courts usually can handle many matters remotely with the same effectiveness as in-person proceedings, such as holding status conferences or motion hearings that may involve non-evidentiary or procedural matters. Remote proceedings also provide flexibility for courts in scheduling proceedings when an in-person proceeding is impossible, because of a lack of available courtrooms, for example. Remote proceedings also promote public access to the courts by allowing additional viewing through livestream or recordings.

What are disadvantages to remote proceedings?

Remote proceedings may not be an effective substitute for an in-person proceeding, however. Assessing the effectiveness and credibility of a testimony requires being able to observe a witness’s demeanor, which may be impossible, limited, or even appear unnatural when captured by camera in a remote setting. Likewise, presenting exhibits can involve unique problems in a remote proceedings, requiring an ability to use the “share screen” feature and multi-tasking between sharing or reviewing displayed exhibits. If a problem arises, the effectiveness of testimony exhibits may be lost, especially if participants are forced to use a dial-in number or hold exhibits up to the camera.

Remote proceedings also restrict the ability for counsel to confer with their clients in confidence. During a proceeding, counsel and their clients oftentimes communicate by whispering or passing notes. However, a remote proceeding requires having an ability to communicate through a breakout room, texting, or otherwise, but without the appearance of distraction or improper coaching.

Further, a remote proceeding requires that the participants have technical capacity and competency. This includes having a reliable internet connection, a compatible computer, familiarity with the videoconferencing platform, and a backup plan — such as a smartphone app or dial-in number — if connectivity issues arise.

What safeguards are necessary for remote proceedings?

As with in-person proceedings, remote proceedings must comply with applicable procedural requirements, including any constitutional and statutory rights, such as constitutional due process. Additional safeguards may be necessary so that participants can have an ability to meaningfully participate, including if a participant (especially a self-represented party) cannot use a videoconferencing platform.

As a result, courts may need to facilitate access to remote proceedings by providing instructions, verifying the ability of litigants to participate, having a backup if technology fails, or holding a proceeding in-person when all else fails. Indeed, many courts, such as the US District Court for the Western District of Texas, provide detailed guidance for using Zoom, while others, like the Massachusetts Trial Courts, provide Zoom Rooms to accommodate litigants.

You can find out more about remote court proceedings here.

The COVID-19 pandemic and resulting lockdowns and government closures changed the way we were allowed to communicate, limiting personal contact and requiring the use of all alternative means. Ultimately, this advanced our overall ability to communicate and interact remotely. More than 30 states suspended in-person court proceedings for weeks or months after the pandemic hit in March 2020. New Jersey, Connecticut, Delaware, New Mexico, and Alaska mandated their use; and states including New York, California, and Texas urged use of virtual proceedings while suspending conflicting court rules. The pandemic may have forced government’s hand, but many courts and related agencies rose to the challenge in understanding new ways to use technology to ensure that people’s rights were preserved and protected.

A failure to provide adequate protection of citizens’ rights leads to more than a clogged court. There are civil implications, such as allegations of civil rights violations and expensive court cases. For example, a lawsuit, brought by San Francisco’s public defender against the San Francisco Superior Court on behalf of nearly 400 remanded prisoners goes into details about how defendants’ constitutional rights to a speedy trial could be being violated by delays and backlogs due to an overburdened and technically-stagnant court system.

As pandemic restrictions are lifted, courts must balance the benefits of traditional means of adjudication against valuable opportunities to use more advanced means. Governments must evaluate the merits and protection of rights afforded in both the use of traditional communication and virtual appearances. The goal of the court is to preserve rights, and it has become obvious that a hybrid model (using virtual and in-person options) is the best way to make sure individuals have the most opportunities and options to exercise their rights.

Participation & access are key

One of the major hurdles to access to justice, of course, is participation in the process, which can include transportation issues, childcare, time off of work, and many other issues that some people can afford to take for granted. The use of the courts’ time to issue bench warrants, dismiss for want of prosecution, and entering default judgements only to have to appeal and re-address the same issues, is an inefficient use of the limited funds allocated to the judicial system. Texas Chief Justice Nathan L. Hecht clearly explained this as the “new normal”, saying: “We really are determined to take what we learned in the pandemic and build on it.”

In Arizona, judges and other state court officials reported increases in case participation rates in 2020, which they attributed to the move toward remote proceedings. For example, there was an 8% drop year-over-year in June 2020 in the rate of default, or automatic judgments indicating an increase in participation. In Arizona’s largest county, Maricopa, the failure-to-appear rate for eviction cases decreased from nearly 40% in 2019 to approximately 13% in February 2021.

It is a critical net step for the courts and access-to-justice advocates to evaluate each change that was made in an effort to get through the period of crisis and determine which changes are critical to maintaining a properly functioning court system. While this answer will inevitable be complex, it will ultimately make the justice system better and save time and money. In many states this process has already begun.

In June 2020, the state of New York created the Commission to Reimagine the Future of New York’s Courts, a group of judges, lawyers, academics, and technology experts that is studying how courts operated during the pandemic. In April 2021, the group issued technology recommendations to “improve the efficiency and quality of justice services during the ongoing health crisis and beyond.”

As the nation enters a period of post-pandemic recovery, all government agencies have an obligation to grab hold of the lessons and technological advancements that were brought on by the pandemic and subsequent crisis. Using these lessons to create a more just court system is one way to not waste that crisis and struggle it caused.

As the A2J issue has exploded, so too have the potential solutions, including technology-based ones. In fact, technology in this space, known as “justice tech,” offers one of the best opportunities to solve for major challenges in this area.

What is justice tech?

Justice tech refers to technology-enabled innovation that supports people affected by the US criminal and civil justice system and their families (and the organizations that serve them).

While many startups have existed in this space for quite some time, justice tech as an investment sector was only recently defined during a summit that was convened by Village Capital and the American Family Institute for Corporate and Social Impact (AmFam Institute) in 2020 to redefine the criminal and civil justice tech sector from an ethical, human-centered perspective.

The event brought together an advisory board comprised of grassroots activists, foundation leaders, startup founders, legal experts, and venture capitalists to ensure this new sector is incentivized to create, support, and fund “human-centered solutions” and is led by people with direct experience within the criminal and civil justice systems.

The business opportunity is enormous because it aims to disrupt an antiquated system via technology. This is critical in a global legal environment in which more than 5 million people cannot access the legal help they need, according to the World Justice Project’s Rule of Law Index 2021; and 23 million people per year must represent themselves in US civil proceedings.

Efforts to accelerate investment in early-stage founders

Both Village Capital and the AmFam Institute continue to collaborate to encourage investment in this space, while ensuring that positive social impact remains at the forefront as this nascent sector develops. As the newly minted startups gain momentum it’s imperative to ensure that the idea of justice tech is viewed as synonymous with positive social impact, rather than letting the moniker be co-opted by companies that inflict community harm under the guise of a hot new sector.

Indeed, this sector represents a unique paradox — entrepreneurs with the highest likelihood of developing successful and impactful solutions are also overwhelmingly those overlooked by investors. Thus, early-stage support of these founders is critical to scaling success.

Fortunately, the framework of this process is designed to support investors who are beginning to explore the space and ensure that they are mobilizing capital into ethical justice tech, highlighting areas around team, business model, product, and community engagement.

To expand this kind of investor engagement and to expedite progress of the sector, Village Capital, the AmFam Institute, and Dream.org are launching a fellowship program, Innovations in Justice Tech, this fall that will support justice tech startups from across the US. The goal of the program will be to connect existing investor networks to a pipeline of founders, while generating positive social and environmental outcomes the sector’s founders.

The program will support eight to ten for-profit justice tech innovations — thought to have the potential to improve the lives of individuals and communities impacted by the US justice system — through an application process.

Launch of the Justice Tech Association

One of the key tenets that is attracting actors to justice tech is the push that the best solutions are built by those with the lived experience with the problems that they are trying to solve, says Maya Markovich, Justice Tech consultant at Village Capital. “Justice tech founders are historically overlooked for funding,” Markovich adds.

To address this problem, Markovich and four other justice tech startup founders — Courtroom 5, HelloDivorce, Easy Expunctions, and People Clerk — created the nonprofit trade group, Justice Technology Association (JTA), in February 2022 with its own board of advisors.

The launch of JTA is another key step in defining justice tech as a component of the legal industry that can build awareness among innovators, technologists, and venture capitalists of the opportunity presented by justice tech startups and nonprofits to tackle complex challenges and disrupt antiquated legal systems.

Currently, the organization is focused on a few key pillars, including:

• • • establishing, fostering, and providing access to a centralized justice tech ecosystem;
    • acting as a resource for those seeking to learn more about justice tech or exploring related funding opportunities;
    • presenting a collective voice to boost impact and advocate for regulatory reform; and
    • educating investors, consumers, and legal professionals about how technology can improve access to justice and administration of legal services to the millions of people who are unable to obtain equitable justice.

As justice tech sector continues to attract increased interest based on its growth so far in 2022, JTA membership also has grown from four in March to 30 member organizations today, with new applications coming in every week. “This space is exploding in a way that we saw in legal tech five years ago — but faster,” Markovich states.

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One of the most important duties of a prosecutor is the legal requirement to turn over exculpatory evidence, meaning evidence that could prove innocence, reduce a sentence, or otherwise cast doubt on the guilt of a criminal suspect.

Prosecutors continue to face technology issues related to evidence, particularly when digital evidence is involved. This was true when I was a prosecutor, and it continues to be an important topic now, in 2022.

“The biggest thing prosecutors were facing pre-COVID and continue to face today is the ability to get access to evidence,” says Mahesh Rengaswamy, Senior Director of Digital Courts Strategy at Thomson Reuters. “Prosecutors need a consistent way to get access to the information they need to do their work in a timely manner.”

Video evidence, body cameras & more

I recall the days when a police report would show up on my desk, and I noticed that there was video evidence of the alleged crime. I often approached those moments with some trepidation. Did the officer bring me a DVD copy of the video? Will the video play on my computer? Even if it does, will the video clearly show what the officer was alleging in the report? And if the video isn’t playable, will we have to drop an otherwise provable case?

Digital evidence is a relatively new phenomenon for law enforcement investigations. And yet more cases are relying on it, and this includes such digital evidence as: video footage of a crime scene from closed-circuit television (CCTV); video footage from a civilian’s cell phone or their own security cameras such as Ring or Nest; footage from an officer’s body camera; data or information on personal computers or on portable electronic devices such as smartphones; and the list goes on. Simply put, the amount of data prosecutors are dealing with has exploded.

One main issue underlying digital evidence is admissibility in court. Is there a proper chain of custody showing how physical or electronic evidence in criminal and civil investigations has been handled? This typically means a chronological paper trail documenting when, how, and by whom individual items of physical or electronic evidence were collected, handled, analyzed, or otherwise controlled during an investigation.

Digital evidence clearinghouse

A cloud-based digital evidence clearinghouse in which evidence is collected, uploaded, and stored into a central repository — while providing a digital paper trail — is one avenue that experts are considering. Law enforcement agencies could funnel the evidence into one system and have it tagged and organized for ease of use and sharing, says Rengaswamy. This could be anything from still photos of a license plate to actual video footage of an attempted convenience store robbery. “There would be no hunting or making phone calls to 15 different people to authenticate the piece of evidence,” says Rengaswamy.

This digital evidence clearinghouse would be a central place where all the information is consolidated across multiple law enforcement agencies. It would solve a workflow challenge that currently has prosecutors typically dealing with multiple agencies at a time, whether city, county, or federal government law enforcement, all of whom may all use different systems for evidence collection and submission to the prosecutor. In a cloud-based environment, this would change to one solution, one place.

Inefficiency in the exchange of data

One thing both law enforcement officers and prosecutors could use more of is time. Dealing with digital evidentiary issues often requires the transfer of large amounts of data, and this takes time. In footage from an officer’s body camera, for example, there is the time to record the footage, retrieve it from the officer’s device and then transfer it to the police agency’s server. Then the evidence will go from the server to the prosecutor, who hopefully can access it when the police report arrives on the prosecutor’s desk. Finally, a prosecutor also has to ensure that a copy is made for the defendant and the defense attorney.

Rengaswamy suggests that if an officer had access to a digital, cloud-based solution, the camera footage would simply be upload instantaneously when the officer connects to the server, either back in the police car or back at that station. The power to immediately push the information to a cloud server to which everyone has access eliminates many accessibility challenges.

“Gone are the days of coding and integration to move bits of data from law enforcement to the prosecution,” notes Rengaswamy. “Cloud technologies eliminate all of that. There is one copy of the digital file for everyone to use. That’s the ultimate goal.”

Proprietary video footage

Having one place to upload, store, and access digital evidence is a great idea, but what about civilians or others who are using older CCTV cameras with proprietary video systems that only play on their DVD players or on some other format?

Rengaswamy explains that this shouldn’t be a problem since it is often the same codec or underlying technology, in most cases an .mp3 or .mp4 file. “Today there are software tools that can essentially decode the proprietary data and make it playable on a simple web browser,” he adds.

Indeed, we’ve come a long way from the days when the police officer needed to take the whole hard drive back to the prosecutor’s office to play the video, or burn a DVD and play it on a specific player that only played those specific video formats.

“In the search for truth, justice, and transparency, everyone should be singing from the same sheet of digital (evidence) music,” Rengaswamy says. “Everyone can be given access to the same information, and that leads to ensuring access to justice.”

I recently moderated a bar association panel, comprised of state court judges, on how best to use existing technology in state court proceedings. There were several key considerations that the panel discussed that merit further exploration.

Does the court have compatible systems for electronic filing and case record management?

Electronic filing, while convenient, creates an element of uncertainty until counsel can identify a filing as accepted on the court docket, an uncertainty complicated by the risk of a technical issue with a submission. Counsel must be able to promptly determine from the court docket whether the court processed an electronic submission, or if not, they must be able to refile if necessary. Any delay in making this determination creates a risk that counsel misses a filing deadline.

Judges must also be able to access directly all electronically filed documents. Absent this access, judges run the risk of overlooking a key document or exhibit filed by counsel.

As a result, courts must use a comprehensive system that combines the convenience of electronic filing with real-time access to the court’s records. A court should use a single case management and electronic filing system; or, if that is unavailable, courts should integrate their existing electronic filing and court records systems. Otherwise, the risks of an error exist, and counsel may opt to file in paper format (unless mandatory) to minimize potential filing issues.

Can counsel digitally submit materials in any format?

Court electronic filing systems typically require that counsel use PDF format to electronically file materials and to limit file sizes. However, PDF format is not always available for digital evidence because of the size or format of the material involved. For example, electronic filing systems often do not accept photographs, emails, text messages, and audio or video recordings in original format.

Counsel must determine in advance the best way and timing for electronically submitting materials to ensure proper consideration by the court. This requires counsel to inquire whether they can file materials using a thumb drive, CD, shared cloud drive, or other means. Counsel must also determine whether the court has compatible software or applications to access materials using counsel’s preferred file format and, if appropriate, to copy and edit materials. In turn, courts should have the latest software and applications to review, access, and use electronic submissions.

Even when a document is electronically submitted, is it accessible as counsel intended?

Counsel must understand in advance what happens to documents and other materials after filing them with the court. For example, counsel should understand the court’s capabilities for whether documents retain color features after electronic filing and if the court can print any or all copies in color. If counsel electronically file lengthy documents or multiple related documents, counsel should understand how the documents appear to the court (such as linking related documents and numbering pages).

Counsel often lacks the ability to preview documents, using a court’s electronic filing system, and see how their submissions will appear to the judge and court staff. To minimize these issues, counsel may need to provide courtesy copies of filed materials where color is relevant and independently mark page numbers of exhibits and other associated materials to ensure that a filing is complete and reviewable as intended.

Do existing courthouse facilities limit counsel’s presentation in a courtroom proceeding?

Counsel should survey the courtroom in advance to determine the available equipment and technology features. This is particularly important before trial, where counsel often must use exhibits and other materials to convince a judge or jury. Even as courts adapt to use electronic methods, their physical facilities can lag. Courtrooms do not always have sufficient existing equipment or capabilities, such as ample or nearby electrical outlets, display monitors, computer cables, or wireless internet access. The construction or location of some courtrooms may interfere with a cell phone signal to contact others or access the internet.

As a result, counsel must understand whether and how to address any shortcomings and develop a backup plan. For example, counsel must bring necessary equipment, such as power strips, cables, or a mobile hotspot. Counsel should also account for using traditional ways to present evidence, such as a whiteboard or using oversized paper versions of exhibits, especially if internet access is unavailable or unreliable or the courtroom lacks monitors.

Can the court conduct a complex proceeding remotely?

Many courts adapted to the pandemic by using videoconferencing to conduct a fully or partially remote proceeding. While a court may use a videoconferencing platform, this requires reliance on the court’s existing infrastructure, which can present challenges unless the court has upgraded that infrastructure.

Counsel must determine in advance whether the court’s technology places them at a disadvantage with a complex remote proceeding, such as a trial. For example, the court’s videoconferencing platform may need to accommodate multiple participants (such as parties and witnesses), display sophisticated exhibits (such as high-resolution documents, videos, or simulations), and provide or sync to a means for recording the proceeding. This also may require the court, as a host, to have enough bandwidth to hold the proceeding and place sufficient cameras and audio equipment inside the courtroom to avoid putting any remote participants at a disadvantage. Otherwise, counsel may need to have any complex proceeding held in person.

You can find out more information about electronically filing court documents, using digital evidence, and conducting trials and other proceedings in federal and state courts, here.

Today, hybrid arrangements allow some in-person court participation, but many problems persist. For example, case backlogs, already large before the pandemic, continue to grow; evidence-sharing and storing of digital files are often a logistical hassle; and even though virtual court participation is technically possible, low-income citizens don’t always have access to computers or a reliable internet connection. In fact, a 2020 study by the independent research group BroadbandNow estimates that as many as 42 million Americans currently live without access to high-speed broadband, an increasingly essential prerequisite for accessing employment resources, educational materials, telehealth services, and virtual or remote court proceedings.

Virtual improvements

Still, despite these challenges, it’s also true that technology has improved many aspects of the American justice system. In a recent Thomson Reuters report on the impact of the COVID-19 pandemic on state and local courts, 42% of respondents said they felt virtual hearings had increased access to justice, including 49% of county and municipal court participants, where backlogged civil matters are a source of constant distress. That stands in contrast to the 23% of respondents who felt that virtual hearings decreased court access, likely because virtual participation requires technology that many people still do not have.

Technological solutions capable of improving court performance now and in the future are only being used by a relatively small handful of tech-savvy courts.

These statistics aren’t surprising. For people who live in rural areas and have adequate internet connections, the option of virtual participation means not having to drive for hours or miss a day of work to meet with a lawyer or make a court appearance. Virtual convenience in turn has resulted in better attendance at pre-trial and trial hearings, as well as greater participation by all parties overall, particularly in civil court. With more online resources available, pro se litigants – those who opt to defend themselves in court – have greater access to legal support services, procedural guidelines, docket schedules and digitally stored evidence. Technology has also streamlined many of the day-to-day operations of the court, simplifying the process for everyone.

A better system for all

Much more can and should be done to improve future court services, of course, but many judges and attorneys are reluctant to change any more than they have to, an attitude that also needs to change.

Consider the problem of access to justice. On August 10, the US Senate passed the Infrastructure Investment and Jobs Act, which will provide $42.5 billion to fund broadband network deployment in remote areas that currently have little or no service. This build-out of America’s wireless infrastructure will also accelerate the availability and adoption of 5G networks all over the country.

Check out our Infographic on the COVID-19 Pandemic & the Courts

Why is this important? Because even if low-income individuals don’t have access to a computer, almost everyone has a smartphone. According to the Pew Research Center, 97% of Americans own a cell phone of some kind, and 85% own a smartphone (up from 35% in 2011).  Soon, then, lack of access to court information will be a thing of the past, and anyone’s ability to participate in court proceedings of all kinds will be only as far away as the nearest cell phone.

Another set of issues that technology can address involves the collection, submission and storage of digital evidence. Currently, many courts are overwhelmed with the explosion of multimedia evidence coming from mobile devices, body-cam videos, audio files, computer hard drives and many other sources. Storing and securing all that data is an increasingly expensive undertaking, and even if a court’s storage and security are adequate, using the data effectively can also be a challenge.

These issues aren’t surprising. In the Thomson Reuters survey, 72% of respondents said they continue to submit proposed exhibit and hearing bundles to the court via email, 64% work in jurisdictions that still use paper and less than one-third use file-sharing platforms.

An even newer normal

Technological solutions capable of improving court performance now and in the future are only being used by a relatively small handful of tech-savvy courts. More widespread adoption of such tools would expand access to the justice system for millions of Americans and provide courts with an efficient, cost-effective way to future-proof themselves against a wide variety of unpredictable social disruptions.

A more efficient, user-friendly court system also would go a long way toward addressing case backlogs, which plague almost every court in the land. How much more efficient would the courts have to be in order to eliminate backlogs? Well, according to our research, the average number of cases handled by individual courts every year is 12,309, and the average current backlog is 1,274 cases. If the courts were just 10% more efficient, then backlogs too would eventually disappear, enabling more timely trials and hearings, and reducing the number of stalled proceedings.

The fact that remote hearings and other forms of virtual participation have already improved court efficiency and expanded access to justice for so many is yet another indication that today’s burgeoning technologies have an important role to play in the courts of the future.

In-person jury trials will always be necessary in some cases, of course, but attorneys who have suspended jury trials under the assumption that “normal” proceedings will soon resume are kidding themselves. What once began as a series of hybrid work-arounds is now a more or less permanent feature of the modern court system, so reluctant attorneys need to adapt. Not only is adapting a practical necessity, the American Bar Association has gone so far as to suggest that attorneys have an ethical obligation to consider virtual jury trials and other creative procedures in order to expedite logjammed court proceedings and provide litigants with a swifter path to justice.

Reimagining justice

The past year has given US courts an extraordinary opportunity to reimagine how justice in this country is managed and administered. As we all know, the justice system has always been slow to embrace change, especially when it comes to technology. But the pandemic has also shown us that, if necessary, the system can and will adapt and evolve with remarkable speed, continuing to operate even under the most daunting circumstances. The fact that remote hearings and other forms of virtual participation have already improved court efficiency and expanded access to justice for so many is yet another indication that today’s burgeoning technologies have an important role to play in the courts of the future.

Technology can’t solve every problem, of course, but it can help create a more resilient, responsive court system that works for the American public in ways the current system does not and never has. The persistence of the pandemic is a tragedy, of course, but where the courts are concerned it can also be viewed as the much-needed push to continue developing a more flexible, future-proof justice system that works better and more efficiently for everyone. And today’s rapid technological advances are making this transformation not only possible, but inevitable.

It is this very mission that inspires thousands of attorneys to join the department. Jordan Howlette and Jessica Massey are two of these lawyers.

The DOJ as a ‘beacon of hope’

Howlette pursued his dream of becoming a Department of Justice (DOJ) attorney, after serving in the military and taking the bar exam while deployed in Afghanistan. He says that he viewed the agency as a “beacon of hope, in that the agency served as a bulwark against those seeking to harm others and a staunch defender of our civil liberties.”

Now, working on the civil side of the tax division as the litigating arm of the Internal Revenue Service, Howlette says he finds meaning each day because he gets to pursue justice through prosecutions by “seeking injunctions against dishonest tax return preparers who promoted fraudulent tax schemes and arrangements.” Many victims are from low-income backgrounds and are usually people of color, and Howlette says he finds this aspect of his work in particular, meaningful as an attorney of color himself.

Massey’s work for the DOJ as an Assistant U.S. Attorney (AUSA) affords those attorneys a unique opportunity to make a difference in their community, she explains. “Of course, AUSAs strive to hold people accountable for their crimes, but we also partner with law enforcement agencies on the federal, state, and local level to implement programs to prevent and control crime. These combined actions have a quantifiable impact on the daily lives of people living in our community.”

Autonomy, prosecutorial discretion & development opportunities

From a career development and litigation experience perspective, Howlette — as an early career attorney himself — believes his DOJ employment has allowed him tremendous autonomy to grow in comparison to private practice. From day one, he was the lead on his assigned cases. He is the person determining if justice is served by applying the law to the facts and circumstances of the case; and more specifically, he has the prosecutorial discretion to decide the direction of the case and how the arguments are framed.

For example, he had one case that involved a business owner who had a significant amount of unpaid taxes that accumulated while the owner was experiencing a series of dire health problems that impacted his ability to pay the back taxes and penalties. Howlette had the autonomy to come up with an equitable strategic solution to avoid taking the business owner’s assets, including his home, and to make recommendations for the settlement. Howlette says he did not see justice being served by us taking this person’s house to collect the back tax revenue when the home served as the residence of the business owner’s kids and grandkids. “This is the discretion that that I find to be very, very meaningful in my day-to-day work,” he adds.

The DOJ also is a great for training and development, both lawyers say. “The training at DOJ truly is second to none,” says Massey. Further, the department has personnel that ensure that each attorney is pursuing a career development plan. “Leadership is also great about checking in to make sure employees are on track to hit their performance goals and to offer new opportunities to work on different types of cases,” she explains.

Collegial work environment & informal mentoring

In addition to his high level of job satisfaction, the DOJ’s work culture is extremely welcoming, Howlette describes. “From my first day on the job, I felt like I was part of a family here in the tax division — a family filled with very intelligent, humble, and caring individuals.” He says that he felt a sense of community, in part, because of the mission. Also, he says he always felt comfortable seeking guidance on the litigation strategy of a case or about getting advice on a career question because of the supportive, harmonious culture.

For Massey, who started at the U.S. Attorney’s Office in 2019 after working as an in-house lawyer, the experience was similar, as she was welcomed by an entire team of peer mentors. “We are constantly helping and bouncing ideas off each other,” she says. “It’s great being part of a team where everyone wants to see you succeed.”

Beyond this emergency response to the crisis, many justice advocates now are asking: Could moving courts online lead to improvements in the justice system? Can online justice inject innovation into an overloaded court system? And can leveraging technology promote greater access to justice and fairness?

I recently spoke to a panel of distinguished experts during an hour-long webinar as part of the Thomson Reuters Government Influencer series using the findings and data points from my latest report, The Impacts of the COVID-19 Pandemic on State & Local Courts Study 2021.

The panel included Mary McQueen, President of the National Center for State Courts; and Mark Martin, Dean and Professor at Regent University School of Law and former Chief Justice of the North Carolina Supreme Court, about the unprecedented opportunity to reimagine our nation’s court system.

You can listen to the full podcast with Gina Jurva, Mary McQueen, and Mark Martin here.

We discussed everything from the benefits and challenges that online proceedings present for judges, practitioners, and participants to how remote proceedings can make courts more efficient while reducing the psychological burden for participants.

Representing a broad cross-section of the judicial community, approximately 240 court professionals — judges and chief justices, magistrates, court administrators, attorneys, and clerks of the court — at the state, county, and municipal courts level responded to our survey that was part of the report.

Now, in our latest podcast, available on the Thomson Reuters Institute Market Insights channel, we highlight key points from the webinar including a statistic from the report indicating that 42% of respondents felt that access to justice has increased with the use of virtual hearings, mostly due to the convenience it allows participants.

We also discussed how technology helped keep court proceedings moving, despite some technological challenges at the beginning.

Episode transcript.